Karnataka High Court
Ms O K Bavya D/O O K Kushalappa vs Smt Jayamma on 14 July, 2011
Author: Jawad Rahim
Bench: Jawad Rahim
INT He HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 14™ DAY OF JULY 2011 . BEFORE THE HON'BLE MR JUSTICE 3 SAWAD RARIM a CRP.NO. 188. OF 2910 BETWEEN MS OK BAVYA D/O OK KUSHALAPPA AGED ABOUT 25 YEARS R/AT DOOR NO. 696 HUTTAGALLI VILLAGE, OPP S.?.S KASABA HOBELT, MYSORE TALUK™. MYSORE. REPRESENTED. BY PA. HOLDER Sel KUSHALAPPA S/O LATE OK SGMAIA H- AGED ABOUT 61 YEARS R/AT B.NG-695, HUTAGALET VILLAGE OPP: S.R.S. KA! SABA. HOBEI MYSORE TALUK MYSORE. -- Soe, . . PETITIONER (BY SKE MANMOHAN PN, ADV.) SMT TAYAMMA AGED ABOUT 45 YEARS W/O CHIKKANNA RVA MOSABEEDI, HINKAL VIL 'MYSORE TALUK SMT PUTTA THAYAMMA ~ AGED ABOUT 42 YEARS W/O MAYAPPA Nada R/A HMOSABEEDI, HINKAL VILL MYSORE TALUK LLAGE AGE W/O SHIVARAMEGOWDA R/A LINGADEVARAKOPPALU VILLAGE, YELWALA HOBLI MYSORE TALUK 4. SMT SAKAMMA AGED ABOUT 37 YEARS W/OSRINIVASA | R/A D.NO. 159, YARAGANAHA\. Lu _ 3°" CROSS, MYSORE a §. MAKKEGOWDA, S/O LATE BOREGOWDA . AGED ABOUT 75 YEARS : R/AT DOOR NO. 359, HINKAL.. VILLAGE, HUNSUR'ROAD- MYSORE TALUK &, BEERAPPA AGED ABOUT 50 ¥ EARS: S/O MAKKESOWDA 9 RAAT DOOR' NG 359, HINKAL~ VILLAGE, HUNSUR ROAD a MYSORE TALS dK SHIVANNA- AGED. "ABOUT. 4S YEARS © Sf Cr. MAKKEGOWDA ~ R/AT BOOR NO, 359, "HINKAL VILLAGE' HUNSUR ROAD, MYSORE TALUK ~t "<3 RAMESHA S/O MAKKEGOWDA . AGED ABOUT 32 YEARS R/AT DOOR NO.359, HINKAL "VILLAGE: HUNSUR ROAD MY¥SOR E TALUK ... RESPONDENTS : (BY SREY D HARSHA, ADV. FOR Ri-4) D w/S 115 OF CPC, AGAINST THE ORDER 1 0 PASSED ON LA. NO. ii rN O.S.294/2008 ON THE FILE OF THE TH ADDL. CIVIL JUDGE, MYSORE, REJECTING THE LAID FILED BY THE APPLI CANT/DEFENDA NT THEREIN FILED U/O-7, R11CD) OF CPC, THIS CRP COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: a ORDER
Defendant is in revision against" the "sister. dated 11.06.2010 on I.A.No.3 in O.S.No. 294/208 declining to reject the plaint as sought for py the appl can
2. Heard.
3. The material facts Aeeding reference are the respondents 1 ta filed sutt'in 0.S.No.294/2008 against their father Makxegowda, the 5! respondent herein and brothers. Respordents 6 to 8 seeking partition of the property 'described in the schedule by metes and bounds for allotting them 4/3" snare on the plea that the property is joint fan fam ily property in which they have coparcenary . "ight. In 'the plai , Cis averred that the property bearing Sy. No. 40 measurin ng 12.26 guntas out of 4 acres of land : : situate at Basavanahaill Village, Mysore was a joint family 'property. They were in joint cultivation which was . acquired by MUDA and Layout was formed. They allotted the site described in the schedule to the family but transferred it in the name of the head of the family. Such an allotment was made in 1999 and possession. certificate was also obtained en 25.03.1999. They. claim. that.
property Is a joint family property and- heriee, liable for.
partition.
4. The defendants resi sisted. the suit and filed an application under Ordex. VIF Rul le 3 (a) of the: CPC seeking rejection of the Dlaint rely ying. on the, pi "ovisa to Section 6 of Hindu Succession Act. The learned tri al Judge declined to accept the 9r9 und an. 'the: basis 5 that enqauiry is necessary and then oniy, the issue. could be decided.
5 As rightly. peinted out by the learned counsel for the petitioner, the relief sought by the plaintiff is to : declare the deed of sale cated 30.04.2004 as not binding : upon theta should have been considered by the trial Court seriously. "Since the plaintiffs have sought for a relief to i 'cancel the deed of sale i.e., 30.04.2004, it had to be seen whether such a relief was grantable in view of amended _ provisons of Section 6 of the Act. The proviso upon which reliance is placed leaves no scope for doubt that nothing contained in sub section shall affect or invalidate any disposition or alienation including any partition: or testamentary disposition of property which had taken place. before 30.04.2004. Since the transaction of Sa se whi ch the | plaintiffs seeks to annul fs 30.04.2004, oe comes wi thi in the mischief of the proviso to-Section 6. of the, Act , one proviso is applicable, then the Fesul tant wpesiti tion would be that the alienation affected : prior 0 December h2004 cannot be questioned anc nd isis created under such a transaction. are safe. _ "Con | nsequent to whi ch the property would not "be Sualabie tat -portiton and the suit is not maintainable. the. tra Court has not accepted these grounds: consequent to sh ch application is rejected. The reasons assigned by the learned trial Judge to reject the "eatin | is unacceptable. Mence, the application filed by : the Sean Stands allowed and the plaint is rejected.
Wi th thi s observati on, this petition stands disposed of.
<4 od/-
UD DGE